Kelvin Gilliam v. State ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 06, 2022
The Court of Appeals hereby passes the following order:
A22A0003. GILLIAM v. THE STATE.
In 2005, after a joint trial with co-defendants, Frederick Terrell and Michael
Stinchcomb, Kevin Gilliam was found guilty of multiple counts of aggravated
assault.1 Gilliam was acquitted of murder and felony murder, but his co-defendant
Terrell was found guilty of murder, among other charges. The trial court later denied
Gilliam and Terrell’s motions for new trial, as amended and they both timely filed
notices of appeal to the Georgia Supreme Court. The Supreme Court determined that
it did not have jurisdiction over Gilliam’s case, and subsequently transferred the case
to this Court. See Gilliam v. State, 312 Ga. 60, 65 (860 SE2d 543) (2021).
As always, “it is the duty of this Court to inquire into its jurisdiction in any case
in which there may be a doubt about the existence of such jurisdiction.” Southall v.
State, 300 Ga. 462, 462 (1) (796 SE2d 261) (2017). This case requires such an
inquiry. The State notes in its appellate brief that “[d]uring the course of [Gilliam’s]
trial, the superior court directed verdicts of acquittal as to . . . three charges of
aggravated assault and dead-docketed another.” The original indictment reflects the
same, and of the multiple counts of aggravated assault, “DD” is marked next to count
14, and “DV” beside the aggravated assault counts 12, 13, and 15. The verdict form
is also consistent with the trial court either directing a verdict or otherwise disposing
of 4 of the original aggravated assault counts, and lists only 9 aggravated assault
counts for the jury’s consideration. The final disposition sheet, however, reflects a
“directed verdict of acquittal as of 12, 14, 15, 17.”
1
Gilliam was paroled in September 2011.
In Seals v. State, 311 Ga. 739, 739 (860 SE2d 419) (2021), the Supreme Court
determined that a criminal case in which charges have been dead-docketed is
non-final for purposes of appeal. See id. at 747-748 (3) (b) (noting that “the language
of OCGA § 5-6-34 (a) (1) does not provide that there is a final judgment when ‘the
case is not active below’; it provides instead that there is a final judgment when the
‘case is no longer pending … below’”); Pavlov v. State, 362 Ga. App. 831, 832, n.2
(870 SE2d 449) (2022) (This “appeal comes to us on interlocutory review. This is
because a criminal case remains pending below when one or more counts of a
multi-count indictment have not been resolved, and so review of the resolved counts
can be had only by obtaining a certificate of immediate review and filing an
interlocutory application.”).
Accordingly, if indeed Count 14 was dead docketed and remains so, in order
to appeal the denial of his motion for new trial, Gilliam is required to comply with the
interlocutory appeal procedure and obtain a certificate of immediate review. See
Seals, 311 Ga. at 747 (3) (b) (explaining that as a practical matter “a dead-docketed
count may be reinstated to the active docket any time at the trial court’s direction.
Inactive and final are not the same thing. . . . [P]lacing a count or counts on the dead
docket certainly constitutes neither a dismissal nor a termination of the prosecution
in the accused’s favor. A case is still pending which can be called for trial at the
judge’s pleasure, or upon which the accused can make a demand for trial.”) (citations,
punctuation and emphasis omitted). See also OCGA § 5-6-34 (b). If, instead, the trial
court directed a verdict as to Count 14 and all counts in Gilliam’s multi-count
indictment have been resolved, Seals does not apply and the case is final for purposes
of a direct appeal.
However, in this case, we cannot ascertain nor exercise our jurisdiction absent
certainty regarding the trial court’s disposition of the charge in question. See Doxey
v. Crissey, 359 Ga. App. 695, 700 (859 SE2d 849) (2021) (explaining the various
functions of a remand and noting that one such function is “for clarification of an
order or ruling.”) (physical precedent only); O’Brien v. State, 353 Ga. App. 425, 428
(2) (838 SE2d 96) (2020)(case remanded to the trial court for clarification because
we were unable to determine whether the trial court found as a matter of fact that the
defendant had agreed to pay the full amount of restitution or whether the trial court
concluded that the court was authorized to award the full amount even if the
defendant had not so agreed, which would constitute error).
According, given this discrepancy, we must remand the case for clarification
of the trial court’s judgment. After such resolution, the case may be transmitted to this
Court for re-docketing.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/06/2022
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.